Care Touch LLC v. Future Diagnostics, LLC et al
| Care Touch, LLC |
| Future Diagnostics, LLC and Charles Sobel |
| 1:2022cv11434 |
| September 7, 2022 |
| US District Court for the District of Massachusetts |
| Denise J Casper |
| Contract: Other |
| 28 U.S.C. § 1441 Notice of Removal |
| None |
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| Filing 23 Judge Denise J. Casper: ORDER entered. ORDER OF REMAND to the State Court(Hourihan, Lisa) |
| Filing 22 Judge Denise J. Casper: ELECTRONIC ORDER entered re: #6 Motion to Remand to State Court. Plaintiff Care Touch, LLC ("Care Touch") filed this lawsuit against Future Diagnostics, LLC and Charles Sobel (collectively, "Defendants") alleging that Defendants wrongfully retained possession of an inventory of blood pressure monitors that Care Touch owns and is in the business of selling. D. 1-1. Care Touch alleges breach of contract and other state law claims. Id. at 1416. Care Touch originally filed this lawsuit in Suffolk Superior Court (Business Litigation Session) and Defendants removed the case to this Court. D. 1. Care Touch now moves to remand for lack of subject matter jurisdiction. D. 6. For the reasons stated below, the Court ALLOWS the motion.Standard of Review. For subject matter jurisdiction based on diversity of citizenship to exist, the suit must be between citizens of different states. 28 U.S.C. 1332(a)(1). An individual is a citizen of the state in which he is domiciled, meaning "the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning." Aponte-Davila v. Municipality of Caguas, 828 F.3d 40, 46 (1st Cir. 2016) (internal quotation marks and citation omitted). A corporation is a citizen of the state where it is incorporated and of the state where it maintains its principal place of business. Id. 1332(c)(1). A limited liability company is a citizen of every state of which its members are citizens. D. B. Zwirn Special Opportunities Fund, L.P. v. Mehrotra, 661 F.3d 124, 125 (1st Cir. 2011) (internal citations omitted).The party asserting subject matter jurisdiction bears the burden of showing that it exists. Aponte-Davila, 828 F.3d at 46. In making its determination about whether Defendants have met their burden, the Court is not constrained to the allegations in the complaint and may consider the record, including affidavits and other relevant materials. Egan, Flanagan & Cohen, P.C. v. Twin City Fire Ins. Co., 570 F. Supp. 3d 12, 14 (D. Mass. 2021) (citing In re Fresenius GranuFlo/NaturaLyte Dialysate Prods. Liab. Litig., 76 F. Supp. 3d 321, 333 (D. Mass. 2015)); see Aponte-Davila, 828 F.3d at 46.Factual Background. Care Touch alleges that it is a Delaware limited liability company with a principal place of business in Massachusetts and that it is a wholly-owned subsidiary of Whele LLC dba Perch (Perch) and that Defendants are both citizens of New York. See D. 1-1 13. An affidavit from the general counsel of Perch attests that Perch is its sole member, that Perch is a limited liability company whose sole member is PerchHQ LLC ("Perch HQ") and that Perch HQ is a limited liability company with many members in various states, including New York. D. 7-1 24. This affidavit attached two documents to corroborate this claim. The first is a screenshot from a database that Perch HQ uses to track its equity holders and shows an example of an equity holder with a New York State residence. D. 7 at 4; see D. 7-2 at 2. The second is a (redacted) written consent of Perch HQ's board of managers reflecting an award of membership interests to a New York resident. D. 7 at 4; see D. 7-3 at 11. Defendants contend that they removed the case in good faith based on the facts alleged in the complaint indicating complete diversity. See D. 15 at 2.Discussion. Defendants argue that Care Touch has failed to provide sufficient proof establishing the citizenship of its members. Id. Care Touch, however, has submitted an affidavit with attached exhibits indicating that at least one of its members is a citizen of New York which destroys complete diversity. See D. 7-1 24. Defendants, who have the burden of showing that complete diversity exists, have not rebutted this evidence, but argue that the affidavit is insufficient because "it fails to attach any official corporate documents confirming the relationship or citizenships of Care Touch's purported corporate members." D. 15 at 2. The Court, however, may consider sworn affidavits and their attachments in determining whether it has subject matter jurisdiction. Egan, Flanagan & Cohen, P.C., 570 F. Supp. 3d at 14 (citation omitted); see also Beck v. Fradette, No. 1:22-CV-10389-IT, 2022 WL 1522211, at *2 (D. Mass. May 12, 2022) (finding that complete diversity existed after considering affidavits and corroborating evidence establishing the citizenship of the defendants). Defendants request leave of court to conduct jurisdictional discovery, citing D.B. Zwirn. D. 15 at 67. In that case, unlike here, the court ordered that an affidavit be filed because the record regarding the membership of LLC party was insufficient to determine whether there was complete diversity. See D.B. Zwirn, 661 F.3d at 125126. By contrast, such an order is unnecessary here given the affidavit of Perch's general counsel and supporting documents which provide sufficient jurisdictional information to determine that complete diversity does not exist. For all of these reasons, the Court does not have subject matter jurisdiction and ALLOWS the motion to remand to Suffolk Superior Court (Business Litigation Section). To the extent that the motion also sought costs and fees, D. 7 at 8, the Court declines to grant that further relief. (Hourihan, Lisa) |
| Filing 21 NOTICE of Appearance by Steven Stern on behalf of Future Diagnostics, LLC, Charles Sobel (Stern, Steven) |
| Filing 20 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #8 Motion for Leave to Appear Pro Hac Vice Added Richard S. Schurin. Attorneys admitted Pro Hac Vice must have an individual PACER account, not a shared firm account, to electronically file in the District of Massachusetts. To register for a PACER account, go the Pacer website at # https://pacer.uscourts.gov/register-account.Pro Hac Vice Admission Request Instructions # https://www.mad.uscourts.gov/caseinfo/nextgen-pro-hac-vice.htm.A Notice of Appearance must be entered on the docket by the newly admitted attorney. (Currie, Haley) |
| Filing 19 NOTICE OF ATTORNEY PAYMENT OF FEES as to #8 MOTION for Leave to Appear Pro Hac Vice for admission of Richard S. Schurin by Defendants Future Diagnostics, LLC, Charles Sobel. Filing fee $ 100, receipt number AMADC-9513737. Payment Type : PRO HAC VICE. (Berman, Pamela) |
| Filing 18 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #9 Motion for Leave to Appear Pro Hac Vice Added Steven Stern. Attorneys admitted Pro Hac Vice must have an individual PACER account, not a shared firm account, to electronically file in the District of Massachusetts. To register for a PACER account, go the Pacer website at # https://pacer.uscourts.gov/register-account.Pro Hac Vice Admission Request Instructions # https://www.mad.uscourts.gov/caseinfo/nextgen-pro-hac-vice.htm.A Notice of Appearance must be entered on the docket by the newly admitted attorney. (Currie, Haley) |
| Filing 17 Proposed REPLY to Response to #6 MOTION to Remand to State Court MOTION for Order to Show Cause , #5 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Care Touch, LLC. (Abramoske, Bryan) |
| Filing 16 CERTIFICATE OF CONSULTATION pursuant to LR 7.1 re #8 MOTION for Leave to Appear Pro Hac Vice for admission of Richard S. Schurin, #9 MOTION for Leave to Appear Pro Hac Vice for admission of Steven Stern Filing fee: $ 100, receipt number AMADC-9491123 by Pamela E. Berman on behalf of Future Diagnostics, LLC, Charles Sobel. (Berman, Pamela) |
| Filing 15 MEMORANDUM in Opposition re #6 MOTION to Remand to State Court MOTION for Order to Show Cause filed by Future Diagnostics, LLC, Charles Sobel. (Attachments: #1 Affidavit Steven Stern)(Berman, Pamela) |
| Filing 14 NOTICE of Appearance by John P Curley on behalf of Care Touch, LLC (Curley, John) |
| Filing 13 MEMORANDUM in Opposition re #5 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Future Diagnostics, LLC, Charles Sobel. (Attachments: #1 Affidavit Charles Sobel)(Berman, Pamela) |
| Filing 12 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #11 Motion for Leave to Appear Pro Hac Vice Added John P. Curley. Attorneys admitted Pro Hac Vice must have an individual PACER account, not a shared firm account, to electronically file in the District of Massachusetts. To register for a PACER account, go the Pacer website at # https://pacer.uscourts.gov/register-account.Pro Hac Vice Admission Request Instructions # https://www.mad.uscourts.gov/caseinfo/nextgen-pro-hac-vice.htm.A Notice of Appearance must be entered on the docket by the newly admitted attorney. (Currie, Haley) |
| Filing 11 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of John P. Curley Filing fee: $ 100, receipt number AMADC-9501426 by Care Touch, LLC. (Attachments: #1 Affidavit of John P. Curley)(Abramoske, Bryan) |
| Filing 10 Letter/request (non-motion) from Bryan M. Abramoske . (Abramoske, Bryan) |
| Filing 9 MOTION for Leave to Appear Pro Hac Vice for admission of Steven Stern Filing fee: $ 100, receipt number AMADC-9491123 by Future Diagnostics, LLC, Charles Sobel.(Berman, Pamela) |
| Filing 8 MOTION for Leave to Appear Pro Hac Vice for admission of Richard S. Schurin by Future Diagnostics, LLC, Charles Sobel.(Berman, Pamela) |
| Filing 7 MEMORANDUM in Support re #6 MOTION to Remand to State Court MOTION for Order to Show Cause filed by Care Touch, LLC. (Attachments: #1 Declaration of Elizabeth Fischer, #2 Exhibit 1 to Declaration of Elizabeth Fischer, #3 Exhibit 2 to Declaration of Elizabeth Fischer, #4 Declaration of John P. Curley, #5 Exhibit 1 to Declaration of John P. Curley)(Abramoske, Bryan) |
| Filing 6 MOTION to Remand to State Court , MOTION for Order to Show Cause ( Responses due by 9/22/2022) by Care Touch, LLC. (Attachments: #1 Text of Proposed Order)(Abramoske, Bryan) |
| Filing 5 MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction ( Responses due by 9/21/2022) by Care Touch, LLC. (Attachments: #1 Affidavit of Nate Jackson in Support of Motion for Temporary Restraining Order and Preliminary Injunction, #2 Exhibit 1, #3 Exhibit 2, #4 Exhibit 3, #5 Exhibit 4, #6 Exhibit 5)(Abramoske, Bryan) |
| Filing 4 ELECTRONIC NOTICE TO COUNSEL: The Category form filed with the Notice of Removal indicates there are pending motions that need this court's attention. Please re-file any pending motions from State Court into this District Court Record (Currie, Haley). |
| Filing 3 Certified Copy of Notice of Removal Provided to Defense Counsel by Email (McManus, Caetlin) |
| Filing 2 ELECTRONIC NOTICE of Case Assignment. Judge Denise J. Casper assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Donald L. Cabell. (Finn, Mary) |
| Filing 1 NOTICE OF REMOVAL by FUTURE DIAGNOSTICS, LLC, Charles Sobel ( Filing fee: $ 402, receipt number AMADC-9485412 Fee Status: Filing Fee paid) (Attachments: #1 Exhibit A, #2 Civil Cover Sheet, #3 Category Form)(Berman, Pamela) |
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